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BMA challenges legality of NHS Pension Scheme

Case update - why our case is the most comprehensive

The BMA is aware that some legal firms are suggesting public sector workers, including doctors, use their services to put forward individual discrimination claims related to the introduction of pension changes to public sector schemes. For doctors, that relates to the imposed introduction of the 2015 NHS pension scheme.

As set out below, the BMA has already begun legal proceedings against the Department of Health and Social Care in respect of the discriminatory nature of the 2015 scheme. Those proceedings include a wide range of individual cases across many branches of practice across all four nations and are already in train. While the BMA is supporting members in all branches of practice, as we believe the principle of equality before the law applies across the four nations and to all branches of practice, some law firms are currently excluding some doctors including consultants from Scotland and Northern Ireland and general practitioners.   

The BMA’s view is that there is no material advantage to BMA members pursuing individual claims through external companies since members can do so as part of their BMA member benefit package; and particularly since such individual external claims are likely to cost individuals in the region of £1,500 plus VAT (around £1,800 total). The BMA expects the outcome of the legal proceedings to be applied for the benefit of all affected members.

 

Background

On the 1 April 2015 the 2015 NHS Pension Scheme (NHSPS) was introduced with approximately 75 per cent of NHS employees joining the scheme on that date. 

The scheme had a number of features including:

  • It is a Career Average Revalued Earnings (‘CARE’) Scheme for all members – as opposed to the final salary scheme which previously applied to non-GPs
  • Pension entitlement accrues at the rate of 1/54th of annual earnings, uprated by the consumer price inflation (‘CPI’) plus 1.5% annually, up to retirement
  • The normal pension age (‘NPA’) is linked to the member’s state pension age which is 66-68, depending on date of birth and therefore age

These changes made the 2015 NHSPS significantly less generous than the preceding scheme and so the BMA took industrial action.

Older doctors are protected from these changes. Pension scheme members who were within 10 years of their NPA on 1 April 2012 are fully protected from the 2015 NHSPS and remain on the preceding scheme.  

Younger doctors, which is to say doctors who were more than 13.5 years from their NPA on 1 April 2012, or who joined the scheme from 1 April 2015, enjoy no such protection from the 2015 NHSPS.

 

Judges and firefighters - Court of Appeal ruling

In the context of their own pension schemes, challenges have been brought to the legality of the Judicial Pension Scheme (‘JPS’) and the Firefighters Pension Scheme (‘FPS’).  

The legal challenges started in the employment tribunal where they had different outcomes (the judges were successful at first instance, whereas the firefighters were not). They then made their way up the appellate system to the Court of Appeal which has now delivered judgment in favour of the claimants in both cases.  

Although the three pension schemes (2015 NHSPS, JPS and FPS) and the context of the work of the pension scheme members is very different, we believe that the underlying legal principles are essentially the same. The outcome of the legal challenges to the JPS and FPS would be highly influential in any legal challenge brought on behalf of younger doctors to the legality of the 2015 NHSPS.

The UK Government applied for but was refused permission to appeal against this ruling. Therefore the ruling of the Court of Appeal in favour of the Claimants stands and is the final judgment in these cases.

 

The BMA action

On 11 March 2019 the BMA pensions committee wrote to the Secretary of State for Health and Social Care, Matt Hancock, the Department of Health (Northern Ireland) and the Scottish Government on behalf of members in those nations. The letters inform them of the BMA’s intention to support a number of members in bringing age discrimination claims in an employment tribunal in respect to the discriminatory impact of the 2015 NHSPS. 

Claims for Age Discrimination have now been issued on behalf of BMA members in the Employment Tribunals in England & Wales and in Scotland and Northern Ireland.

Read the letter to the Department of Health and Social Care (England and Wales)

Read the letter to the Scottish Government

Read the letter to the Department of Health (Northern Ireland)